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http://dx.doi.org/10.4314/pelj.v15i2.10
ISSN 1727-3781
THE ROAD ACCIDENT FUND AND SERIOUS INJURIES: THE NARRATIVE TEST
2012 VOLUME 15 No 2
Authors: M Slabbert and HJ Edeling
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THE ROAD ACCIDENT FUND AND SERIOUS INJURIES: THE NARRATIVE TEST
M Slabbert*
H J Edeling*
1 Introduction
The Road Accident Fund Act 56 of 1996 has for many years been a bone of
contention between lawyers, the government and physicians. In general, lawyers
want to get as much as they can from litigation1 against the Road Accident Fund
(RAF),2 government wants to pay as little as possible,3 and doctors want patients to
get what they rightly deserve due to their physical and/or mental losses. Section 3 of
the Act explains the objective of the Fund as the payment of compensation in
accordance with the Act for loss or damage wrongfully caused by the driving of
motor vehicles.4 The Act was signed by the President on 24 October 1996 and it
commenced on 1 May 1997.5 The long anticipated Road Accident Fund Amendment
Act 19 of 2005 came into effect on 1 August 2008.
* Magda Slabbert. BA (Hons) HED B PROC LLB LLD (UFS). Professor Department of
Jurisprudence, University of South Africa, [email protected]. * Herman J Edeling. MBBCh (Wits) FCS (SA) (Neuro). Fellow of the College of Surgery with
Neurosurgery Certified Independent Medical Examiner, [email protected]. 1 Venter Pretoria News 1. 2 The Fund is an organ of state established in terms of s 2 of the Road Accident Fund Act 56 of
1996. 3 The Road Accident Amendment Act 19 of 2005 limits the RAF's liability for compensation in
respect of claims for non-pecuniary loss (general damages) to instances only where a serious injury has been sustained. In Mngomezulu v RAF Unreported case no 4643/2010, Gauteng High Court the court pointed out that road accident victims are constantly faced with ill-founded, spurious and brazen attempts to delay finality of their matters.
4 Section 5 Road Accident Fund Act 56 of 1996: "The Fund shall procure the funds it requires to perform its functions – (a) by way of a Road Accident Fund levy as contemplated in the Customs and Excise Act, 1964 and (b) by raising loans".
5 In Engelbrecht v Road Accident Fund 2007 6 SA 96 (CC), Kondile AJ, writing for the Constitutional Court, stated that the legislature's primary concern in enacting the Act remained the same as it had been in respect of all the preceding statutes, beginning with the Motor Vehicle Insurance Act 29 of 1942. The relevant legislative history since 1942 is related in Law Society of South Africa v Minister of Transport 2011 1 SA 400 (CC) para 17-21.
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This Amendment Act limits the RAF's liability for compensation in respect of claims
for non-pecuniary loss (general damages)6 to instances where a "serious injury" has
been sustained.7 The Amendment Act also abolishes a motor accident victim's
common law right to claim compensation from a wrongdoer for losses which are not
compensable under the RAF Act, and it limits the amount of compensation that the
RAF is obliged to pay for claims for loss of income or a dependant's loss of support
arising from the bodily injury or death of a victim of a motor accident. This article
deals only with the concept of "serious injury" and not with the other limitations in the
Act.
According to the Act a medical practitioner has to determine whether or not the
claimant has suffered a serious injury by undertaking an assessment prescribed in
the Regulations to the Act.8 The practitioner performing the injury assessment has to
prepare an RAF 49 report. Preparation of the report requires completion and signage
of the RAF 4 form and in many cases the attachment of annexures and/or
substantiating reports. When compiling the report, the medical practitioner must first
have regard to a list of non-serious injuries.10 Secondly the medical practitioner must
assess the injury in terms of the American Medical Association's Guides to the
Evaluation of Permanent Impairment, Sixth Edition (hereafter referred to as the AMA
Guides).11 If the injury is found to have resulted in 30 per cent or more impairment of
6 "Non pecuniary loss" comprehends damages under the heads more commonly referred to in
South Africa as "general damages". Damages in respect of "pecuniary loss" are usually referred to as "special damages" in South African delictual law. Compensation for the loss of earning capacity, which properly falls to be characterised as a head of "general damages" in South African legal parlance, is nevertheless claimable as pecuniary loss under the Act under the label "future loss of income", subject to maximum limits determined in accordance with s 17(4)(c) read with s 17(4A) of the Act. See Daniels v RAF Unreported case no 8853/2010, Western Cape High Court fn 4.
7 Road Accident Amendment Act 19 of 2005. 8 Road Accident Fund Act 56 of 1996: Road Accident Fund Regulations, 2008. GG 31249, Notice
number 770 of 21 July 2008, The Regulations became effective on 1 August 2008. See s 9 of the Regulations.
9 http://www.raf.co.za [date of use 19 Dec 2011]. 10 Section 3(b)(i) of the Regulations (n 8). "The Minister may publish in the Gazette, after
consultation with the Minister of Health, a list of injuries which are for purposes of section 17 of the Act not to be regarded as serious injuries and no injury shall be assessed as serious if that injury meets the description of an injury which appears on the list". Such a list has not yet been published.
11 Rondinelli et al Guides to the Evaluation of Permanent Impairment. Regulations (n 8) section 3(1)(ii) and 3(1) (iv).
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the whole person, according to the methodology provided for in the AMA Guides, the
injury should be assessed as serious.12
The final step of the report will follow only where the injury is not listed on the "non-
serious injuries" list, and where the injury is considered to have resulted in less than
30 per cent of WPI (whole person impairment). In this case the medical practitioner
should apply the "narrative test". According to this test the medical practitioner
should consider if the injury has resulted in any of the following consequences:
"serious long-term impairment or loss of a body function, permanent serious
disfigurement, severe long-term mental or severe long-term behavioural disturbance
or disorder, or the loss of a foetus".13
As is discussed in detail below, there are three major reasons that the AMA Guides
is not adequate to the intended task. In an apparent attempt to compensate for these
inadequacies the narrative test has been designed as an alternative method of
assessing serious injuries. The need for the narrative test arises particularly under
two groups of circumstances; namely when the nature of the impairment cannot be
dealt with adequately by the methodology of the AMA Guides, and when the
circumstances of the injured result in serious disability even though the impairment
taken in isolation may not have been seen as serious.
This article discusses reasons why the Regulations do not fulfil the requirements of
the Act; reasons why the AMA Guides is not adequate to the task; the impact of the
circumstances of an injured person on disability; problems with the existing wording
of the narrative test; shortcomings on the RAF 4 form; the administrative process
and the appeals tribunals. Reference is also made to court cases in which the
narrative test was analysed. In conclusion, recommendations are made in relation to
the effective use of the narrative test and the completion of RAF 4 reports in line with
the requirements of the Act, how the Regulations and RAF 4 form could be
improved, and more relevant training of doctors, lawyers and administrators.
12 Section 17 Road Accident Fund Act 56 of 1996. See also the Regulations (n 8) s 2(a). The
determination of the seriousness is also important as the RAF will bear the costs of the assessment only if the claimant's injuries are found to be serious.
13 RAF 4 form point 5. The form is available on the website: http://www.raf.co.za. [date of use 19 Dec 2011].
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2 Reasons why the Regulations do not fulfil the requirements of the Act
and inherent deficiencies in the AMA Guides
The assessment of the seriousness of an injury for the purpose of the awarding of
general damages should be conducted in terms of the method provided for in the
Regulations promulgated in terms of the RAF Act.14 The Regulations "define" a
serious injury as a 30 per cent WPI according to the AMA Guides.15 There are three
major reasons that the AMA Guides is not adequate to the intended task.
Firstly, the Amendment Act stipulates in section 17(1A)(a) that the "Assessment of a
serious injury shall be based on a prescribed method adopted after consultation with
medical service providers and shall be reasonable in ensuring that injuries are
assessed in relation to the circumstances of the third party". In highlighting the
importance of "the circumstances of the third party", the Act therefore prescribes an
assessment of "disability" as opposed to an assessment of "impairment".
Contrary to this important and just provision of the Act, the Regulations prescribe the
use of the AMA Guides, which in turn prescribes an "impairment" rating system. For
practical purposes this system excludes consideration of the circumstances of the
injured person. As clearly stated in the AMA Guides, they do not purport to be and
cannot on their own be considered to be guides to permanent disability rating.16
The AMA Guides defines impairment and disability as follows. Impairment: "a
significant deviation, loss, or loss of use of any body structure or body functions in an
individual with a health condition, disorder, or disease".17 Disability is defined as:
"activity limitations and/or participation restrictions in an individual with a health
condition, disorder, or disease".18 The AMA Guides goes further and states: "The
Guides is not intended to be used for direct estimates of work participation
restrictions. Impairment percentages derived according to the Guides' criteria do not
directly measure work participation restrictions".
14 Section 17(1A) Road Accident Fund Act 56 of 1996. 15 Regulations (n 8) s 3(1)(b)(ii). 16 Rondinelli et al Guides to the Evaluation of Permanent Impairment 5. 17 Rondinelli et al Guides to the Evaluation of Permanent Impairment 5. 18 Rondinelli et al Guides to the Evaluation of Permanent Impairment 5.
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The AMA Guides therefore does not serve the purpose of the Act. Permanent
impairment is only one of many components that contribute to permanent disability.
The seriousness of an injury relates to the degree of disability far more than to the
degree of impairment alone. This is because of the major contributions to the
seriousness of the permanent sequelae of injuries that are made by geographical,
economic, housing, transport, employment and other factors, all of which are
contemplated in the meaning of disability but not in the meaning of impairment.
Section 17(1A)(a) of the RAF Act specifically requires that "Assessment of a serious
injury shall be based on a prescribed method adopted after consultation with medical
service providers and shall be reasonable in ensuring that injuries are assessed in
relation to the circumstances of the third party" (own emphasis). In other words it is a
requirement in the Act to take an injured person's circumstances into consideration,
but this requirement is not included in the Regulations except for indirect application
in the narrative test. According to social justice relevant external factors in addition to
impairment should be taken into consideration as well. Professional experience
abounds with examples of major differences between the impact of the same injury
and the same impairment on different persons in different social and geographical
circumstances, on the ability to function, on the ability to perform the activities of
daily life, and therefore on the quality of life. To ignore these important contributing
factors will exclude from the system of compensation the major suffering of countless
impoverished and otherwise disadvantaged victims of road accidents.
Many such victims are necessarily more susceptible to environmental obstacles than
wealthier persons who have access to mechanical or domestic amenities that poor
people lack. Many poor persons have limited educational or other vocational skills
and they are limited to performing manual work. That means that the same physical
impairment percentage will have a greater impact on a poor person who is qualified
to perform manual labour only and who has limited resources, than on persons with
a wider range of skills, facilities, transport and access to healthcare. What is socially
unjust is the provision in the Regulations that prescribes the use of an inappropriate
instrument to measure serious injury. The Regulations prescribe an instrument in the
AMA Guides that measures only one of the major elements that contribute to the
seriousness of an injury, namely "impairment". The other major element, namely the
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"circumstances of the victim" as specified in the RAF Act, is not specifically
addressed by the AMA Guides. In some instances it is addressed by way of grade
modifiers, but in such a minute way as to be practically ineffective.
Furthermore, no consideration is given to the more severe suffering and impairment
during the months or years following the accident prior to the date of MMI (maximal
medical improvement), as the impairment rating relates only to the altered status for
the rest of the person's life after the date of MMI.
If the intention of awarding compensation for "general damages" is to compensate
victims for "non-pecuniary damages" such as "pain and suffering and losses of
amenities and enjoyment of life", it is scientifically misguided and socially unjust to
determine those victims who should receive compensation for "general damages" by
use of an instrument that according to its own description fails to award any more
than a token percentage to chronic pain in the vast majority of cases. This is
because it has thus far proved to be impossible to apply consensus-based
percentages to the suffering associated with pain.
The second reason that the AMA Guides is not adequate to the intended task relates
to inherent inadequacies in the Guides in terms of their usage for the assessment of
"general damages" as contemplated in South African practice. General damages are
intended to provide compensation for "pain, suffering and losses of amenities and
enjoyment of life". The suffering of any injured person is an intensely personal and
subjective experience. Whereas the Guides is good at the assessment and
comparison of concrete elements of impairment that are amenable to objective
measurement, such as the degrees of loss of motion of an injured joint, they fall
short in the assessment and comparison of equally important but more abstract and
subjective impairment associated with suffering. In the result the Guides does make
provision for small and inconsistent impairment percentages for pain and loss of
amenities, but these are ineffectual in meeting the 30 per cent of WPI benchmark
provided for in the Regulations.
Chapter 3 of the AMA Guides, "Pain-Related Impairment", provides that when pain
has been identified by the patient as a major problem, and when a number of other
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criteria have been met, the degree of pain-related impairment is to be assessed
according to the prescribed "Pain Disability Questionnaire".19 According to this
method, when the "Degree of Pain-Related Impairment" is classified by the AMA
Guides as "Extreme",20 a "Whole Person Impairment" of only 3 per cent is awarded.
This means that a victim who is disabled due to chronic pain (such that the victim is
unable to work; needs help with personal care; travels only to see doctors; cannot lift
objects off the floor, bend, stoop or squat; cannot walk or run; has loss of income; is
on pain medication throughout the day; is forced by pain to see doctors weekly; is
unable to see people who are important to the victim as much as he or she would
like; suffers total interference with important recreational activities and hobbies;
needs help to complete everyday tasks; suffers severe depression/tension; and
suffers emotional problems caused by pain that interfere with family, social or work
activities) will not receive any compensation for general damages because 3 per
cent falls far short of the prescribed minimum requirement of the 30 per cent of WPI
required by the Regulations.
Further to the above, internal inconsistencies are apparent in other sections of the
Guides. Certain specific severe pain syndromes are awarded different percentages.
The worst class of migraine headache, described as "severe disability", is awarded 5
per cent of WPI.21 The worst class of trigeminal or glossopharyngeal neuralgia,
described as "severe, uncontrolled facial neuralgic pain that interferes with
performance of activities of daily living (ADL)", is awarded 6 to 10 per cent of WPI.22
The worst class of neurogenic pain in miscellaneous peripheral nerves, described as
"severe neurogenic pain in an anatomic distribution", is awarded 4 to 5 per cent of
WPI.23 All of these percentages fall far short of the prescribed minimum of 30 per
cent of WPI.
All victims with "severe" and the majority of victims with "very severe" complex
regional pain syndrome in the lower extremities, and who meet stringent diagnostic
criteria, are awarded ratings between 10 and 28 per cent of WPI depending on grade
19 Rondinelli et al Guides to the Evaluation of Permanent Impairment 40. 20 Rondinelli et al Guides to the Evaluation of Permanent Impairment 40 Table 3-1. 21 Rondinelli et al Guides to the Evaluation of Permanent Impairment 342. 22 Rondinelli et al Guides to the Evaluation of Permanent Impairment 343. 23 Rondinelli et al Guides to the Evaluation of Permanent Impairment 344.
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modifiers (26 to 70 per cent lower extremity impairment rating), while only the two
worst grades of the class 4 "very severe" are awarded ratings above 30 per cent,
namely ratings of 32 or 36 per cent of WPI (80 or 90 per cent lower extremity
impairment rating).24 The application of the prescribed criterion of 30 per cent of
WPI according to the AMA Guides will deny compensation for general damages to
many victims who suffer severe chronic pain-related disability stemming from serious
and life-altering injuries. It is inconceivable that this unconscionable effect could have
been the intention of the Act.
The third reason that the AMA Guides is not adequate to the intended task relates to
inherent difficulties in the measurement of the more abstract though objectively
evident impairments associated with brain damage on the one hand and the
psychological sequelae of injuries on the other. The "neurocognitive" and
"psychiatric" sections of the Guides are less scientifically clear and less consistent
than the "orthopaedic" and "neurophysical" sections of the Guides.
If a person suffers a brain injury, for example, physicians assessing the injured are to
use the Mental Status Exam for the Neurologically Impaired Patient.25 The
application of the test is qualitative and not quantitative, and the assessment is open
to a wide degree of inter-observer discrepancy. Add to that the Criteria for Rating
Neurological Impairment due to Alteration in Mental Status, Cognition, and Highest
Integrative Function (MSCHIF)26 and the situation is exacerbated in the first two
alternative methods. There is no indication as to the criteria for rating a mental
impairment as "mild", "moderate" or "severe", which is the determination upon which
classifications should be made in Classes 1, 2 and 3.
24 Rondinelli et al Guides to the Evaluation of Permanent Impairment 538-542. Examples 16-17 on
540-542 describe the extent of suffering and impairment of a woman who is awarded a 15% whole person impairment rating. Pages 450-454 show that similar comments apply to cases of complex regional pain syndrome in the upper extremities, except that the upper extremities impairment ratings are multiplied by 60% to calculate whole person impairment ratings instead of 40% as in the case of the lower extremities, and that victims with all grades of class 3 "severe" complex regional pain syndrome fall short of the prescribed minimum level for compensation, with whole person impairment ratings varying between 16 and 29% depending on grade modifiers (26 to 49% upper extremity impairment ratings), while only those in class 4, "very severe", qualify for compensation by virtue of whole person impairment ratings of 30% to 54% (50% to 90% upper extremity impairment ratings). Examples 15-20 on pages 452 to 454 describes the extent of suffering and impairment of a man who is awarded a 29% whole person impairment rating.
25 Rondinelli et al Guides to the Evaluation of Permanent Impairment 330 Table 13-7. 26 Rondinelli et al Guides to the Evaluation of Permanent Impairment 331 Table 13-8.
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Chapter 14 of the Guides, entitled "Mental and Behavioural Disorders", deals with
psychiatric conditions, while chapter 13, which is entitled "Central and Peripheral
Nervous System", deals with neurological conditions. There is an unfortunate
potential ambiguity in the choice of words in that the neurological sequelae of
traumatic brain injury typically include mental and behavioural disorders. A doctor
compiling a report for an individual with mental and behavioural disorders due to
traumatic brain injury can therefore end up using the psychiatry chapter instead of
the neurology chapter. Adding to the problem, table 14-10 of the psychiatry chapter,
which deals with "GAF" (Global Assessment of Functioning) is reproduced as 13-10
in the neurology chapter, therefore prescribing a psychiatric instrument for a
neurological condition.
The application of the impairment percentages in tables 14-10 or 13-10 to survivors
of traumatic brain injury leads to significant under-assessment of the seriousness of
the injury. For example, a person with major and permanent life-altering sequelae,
including the loss of employability, amenities and independence, defined in the
Guides as "serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) or any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job)", are awarded 15 per cent of WPI.
A person with even worse sequelae, defined in the Guides as "some impairment in
reality testing or communication (e.g., speech is at times illogical, obscure, or
irrelevant) or major impairment in several areas, such as work or school, family
relations, judgement, thinking, or mood (e.g., depressed man avoids friends,
neglects family, and is unable to work; child frequently beats up younger children, is
defiant at home and is failing at school)", is awarded 20 per cent of WPI. The effect
is that such individuals may be denied any compensation for general damages. This
could not have been the intention of the legislature.
The above comments are not intended as criticism of the authors of the Guides, who
have performed an admirable task in compiling a comprehensive impairment rating
system, but are intended to highlight the serious problems and inter-observer
discrepancies of a system in which observers are required to apply a percentage-
based system to impairments that are objective but abstract, and even more so to
impairments that are both subjective and abstract.
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The ideal is that only doctors who have attended a course presented by the author(s)
of the Guides should be authorised to compile an RAF 4 report. To date not enough
doctors have completed the course and therefore any medical practitioner who is
registered in terms of the Health Professions Act 56 of 1974 is at this stage
"qualified" to fill in the form or compile a report without necessarily knowing how to
employ the AMA Guides.27 Medical students are not exposed in their studies to the
AMA Guides. In normal clinical practice doctors have no reason to perform
assessments under the Guides, which would serve no purpose when treating a
patient. There is no external postgraduate training in the Guides in South Africa
except for the occasional courses provided under the auspices of the RAF. The
effect is that not enough doctors are proficient in the use of the Guides.
Without training in the AMA Guides medical practitioners would not be able to make
complex assessments in terms of the Guides. In fact, many medical practitioners
who have undergone the standard training in using the Guides still need further
experience and study before becoming able to make adequate independent
impairment assessments in terms of them.28 In many cases assessment under the
AMA Guides requires the availability of several specialists in different fields, requiring
each to have had training in the use of the Guides. This adds counterproductive
complexity and cost to the prescribed assessments. Although it is the intention of the
AMA Guides that a single qualified medical practitioner should perform a
comprehensive assessment according to the methodology of the Guides, in practice
even medical practitioners who are qualified CIMEs29 are sometimes unwilling to
transgress into other speciality fields and give opinions in areas of medicine in which
they do not have sufficient knowledge.
27 Lists of doctors who have completed the exam offered by the American Board of Independent
Medical Examiners are available on the website http://www.abime.org. [date of use 19 Dec 2011]. These doctors are referred to as CIMEs – Certified Independent Medical Examiners.
28 In Law Society of South Africa v Minister of Transport 2010 11 BCLR 1140 (GNP) Fabricius AJ confirmed that the AMA Guides would not be readily comprehensible in important respects to anyone who was not proficient in the medical assessment of bodily impairment.
29 See fn 27 above.
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3 The narrative test
After the completion of an assessment, where the result is less than a 30 per cent
WPI, the claimant may well be able to show that he or she qualifies for compensation
by the RAF in terms of the narrative test.
In Mngomezulu v RAF30 the court held that with regard to assessing the injury after
an accident as serious in terms of the amendments to the RAF Act 1996,31 the two
alternatives tests that can be used are: the "whole person impairment test as per
Regulation 3(1)(b)(ii) and the so-called narrative test as per Regulation 3
(1)(b)(ii)(aa)-(dd)". The narrative test is a safety net providing an alternative
assessment where the AMA Guides would not result in a finding of serious injury
according to the prescription of the Regulations.32
In the Mngomezulu case the plaintiff was involved in a hit-and-run motor vehicle
accident, as a result of which he suffered injuries. He instituted action against the
RAF. The basis for the plaintiff's claim was for general damages via the narrative test
in terms of Regulation 3(1)(b)(iii)(aa)-(cc). Various reports and RAF 4 forms had
been completed by medical specialists confirming that the injuries he sustained were
serious as per the narrative test. The RAF opposed the action.
The RAF contended that the medical practitioners had not completed the RAF 4 form
correctly in that they failed to assign a "whole person impairment" rating and instead
chose to rely on the narrative test, yet the court pointed out that there was nothing in
the Regulations which prevented the plaintiff from being assessed in terms of the
narrative test. Either of these tests may be used.
In Daniels and 2 Others v RAF33, a woman was struck down by a motor vehicle and
sustained severe injuries to her lower leg. As a result of this she was unable to
resume her work as her previous employment required her to run about physically.
She claimed her injuries were serious within the meaning of section 17(1) of the RAF
30 Mngomezulu v RAF Unreported case no 4643/2010, Gauteng High Court. 31 Road Accident Fund Amendment Act 19 of 2005. 32 Ahmed 2011 Risk Alert Bulletin 6. 33 Daniels v RAF Unreported case no 8853/2010, Western Cape High Court.
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Act and she claimed compensation for general damages. She could not afford to
pay the R7 000 required for a serious injury assessment report and submitted a
request to the Fund for financial assistance. The Fund refused this request and
contended that it was liable to pay the costs of a serious injury assessment only in
the event that the claimant had sustained serious injuries that resulted in not less
than 30 per cent WPI. The Fund did not consider the narrative test adequate to
ascertain the seriousness, or lack thereof of the injury.
In the court papers the Fund explained that they will assist a person financially only if
there is a prima facie indication of a serious injury. It further stated that the narrative
test is there only to cover the isolated and rare cases where the whole person
impairment test fails. It is thus a fallback position.34
The court stated that the narrative test falls to be applied as an integral part of any
serious injury assessment and this is indeed confirmed by the contents of part 5 of
the RAF 4 form, which gives effect to regulation 3(1)(b0(iii). There is nothing in the
Regulations which suggest that the narrative test should be applied only in "rare and
isolated cases". The decision by the Fund to decline the applicant's request in terms
of regulation 3(2)(b) was set aside.
The whole person impairment test is largely based on the table of activities of daily
living,35 which includes basic activities such as grooming, toileting, feeding, dressing
and bathing, as well as advanced activities such as driving a car, sexual function,
money management, shopping, housework and moderate activities.
It is submitted that a person should be tested not only against activities of daily living
when using the narrative test, but also according to the roles he or she plays in life.
By way of example, life roles include being a mother, a husband, a friend, an
accountant, a professor, a politician, a sportsperson and so on. For example, if an
academic or a professional practitioner with a pre-accident IQ of 130 has been
reduced to an IQ of 115 by a head injury, the impairment may seem minor as many
people excel on an IQ of 115. However, for the head-injured academic or
34 Bertelsmann 2011 Risk Alert Bulletin 6. 35 Rondinelli et al Guides to the Evaluation of Permanent Impairment 323.
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professional practitioner the injury results in serious disability as the loss of
intellectual capacity renders him or her unable to work or engage in other life roles
as before. In many cases the result is that the individual suffers permanent and
distressing losses of status, dignity and respect.
3.1.1 Problems with the RAF 4 form and the narrative test
The Act stipulates in Section 24(2)(a) that "The medical report shall be completed on
the prescribed form by the medical practitioner who treated the deceased or injured
person for the bodily injuries sustained in the accident from which the claim arises,
…". The form referred to in Section 24 is the RAF 4 report form. The form states at
the beginning, amongst other things, that a claim for non-pecuniary "general
damages" or "pain and suffering" will not be considered unless the report is duly
completed and submitted. The RAF 4 form must be completed by a medical
practitioner registered in terms of the Health Professions Act 56 of 1974. Finally the
report must be compiled by using the tables and page numbers from the AMA
Guides.
Problems arise in relation to the loose use of the word "injury" where the context
appears to relate to complications, impairment or disability. This can easily lead to
confusion. In essence "injury" refers to the physical damage that occurs at the
moment of the accident, "complication" to the subsequent pathological
developments, "impairment" to the long-term symptoms and losses resulting from
the injuries, and "disability" to the effects of the impairment on the various elements
of the individual's life taking into account the circumstances.
Point 3 on the form, which relates to non-serious injuries, currently serves no
purpose. According to the RAF Act and Regulation 3(1)(b)(i) the Minister may
publish in a Government Gazette, after consultation with the Minister of Health, a list
of injuries which for the purposes of section 17 of the Act will not to be regarded as
serious injuries. The Minister of Transport has to date (2012) not published a list of
non-serious injuries. Until such a list is published, medical practitioners performing
assessments in terms of the assessment method prescribed in Regulation 3(1)(b)
must disregard Regulation 3(1)(b)(i), and therefore point 3 on the form.
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Point 4 refers to the AMA Guides rating which should be completed if the injury
sustained does not appear on the non-serious list of injuries. In point 4.1 the doctor
is required to describe the nature of the motor vehicle accident, despite the fact that
he or she often has no knowledge or limited knowledge of what happened and he or
she must therefore speculate. It would be more relevant to ask the doctor whether he
or she is satisfied that the injured was indeed injured in a motor vehicle accident, and
whether the injuries claimed for were in fact caused by the motor vehicle accident in
question.
The order of the report to be completed is troublesome and there are glaring
omissions. There is no specific provision for recording the injuries or complications.
The doctor must first indicate the medical treatment rendered (4.2) to the injured
before indicating a diagnosis (4.4) and before recording the medical history (4.7), the
social and personal history (4.8) or the educational and occupational history (4.9) of
the injured. It is not clear whether the required diagnosis (4.4) relates to the injury
diagnosis or the outcome diagnosis, two different concepts each which is of major
importance.
Strangely the form does not call for the doctor to record the percentage of
impairment. This is despite the fact that, according to the Guides and according to
the RAF, the percentage of impairment is the crux of the matter. No mention of the
cut-off point of 30 per cent or more of WPI to determine whether an injury is serious
or not is made under point 4 on the RAF 4 form. The only reference to 30 per cent of
WPI appears in point 5, which deals with the narrative test.
The Regulations state in section 3(1)(b)(ii) that if the injury resulted in 30 per cent or
more impairment of the whole person, the injury shall be assessed as serious, but if
the injury is assessed at below 30 per cent (using the AMA Guides) it may
nonetheless be considered a serious injury for one or more of many reasons, in
which case the doctor should apply the narrative test (Point 5 on the RAF 4 form).
Point 5 uses the words "serious" and "severe", yet the meanings of the words are not
defined in the Act, the Regulations or the RAF 4 form. The undefined choice of
these words leaves their interpretation open to the personal experience and
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subjective views of different doctors, with the obvious potential for wide inter-
observer discrepancies on the same subject.
In the narrative test as set out in point 5.1, the doctor must consider if the injuries
have resulted in "serious long-term impairment or loss of a body function". The word
"serious" at this point takes the matter no further than the word "serious" in the
heading of the form or in point (c) on the first page of the form. Similar comments
relate to point 5.2, "permanent serious disfigurement". The doctor may just as well
have simply been asked to consider whether the injuries were "serious" or not,
thereby dispensing with the need for the Guides and the perplexing form.
In point 5.3 the doctor must consider if the injuries have resulted in "severe long-term
mental or severe long-term behavioural disturbance or disorder". It should be
remembered that the form stipulates that the narrative test should be used only once
the doctor has determined that the WPI, as provided for in the Guides, is below 30
per cent, yet the doctor feels that the injuries are serious. Because of the choice of
words, the ambiguity and difficulties outlined above in relation to the use of chapter
13 and chapter 14 of the Guides may influence the doctor's consideration of point 5.3
of the narrative test.
It is clear that the wording of the narrative test, as it appears in the Regulations and
on the RAF 4 form, is problematic. Despite its apparent purpose in complying with
the provisions of the Act by remedying inadequacies in using the Guides as a
method of determining serious injury, it makes no mention of the injured person's
circumstances, disability, pain, suffering or loss of enjoyment of life.
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4 The procedure after an RAF 4 report has been completed
After completion of an RAF 4 report, whether the whole person impairment test or
the narrative test was used, it is submitted to the RAF. Peculiarly, members of the
administrative staff of the RAF are then required to review the medical report and
decide whether or not they accept it. In practice it turns out that most claims are
rejected, suggesting that the administrative staff disagree with the medical findings.
The basis on which they disagree begs explanation.
In the Mngomezulu case36 the court provided guidelines with regard to the rejection
of a serious injury claim - the RAF must furnish the plaintiff with reasons why the
RAF 4 report was rejected37 - but the court stated that this applies only to procedural
aspects of the assessment and provided the following examples: where the report is
completed by an unqualified person; the assessment is not conducted in terms of the
prescribed methods; the impairment evaluation reports for a specific body part are
not attached as required; or the report is not completed in all particularity. In Smit
and Another v RAF38 it was also stated that sufficient reasons must be given
justifying a rejection of a claim.
The RAF can also request the plaintiff to make him or herself available for further
assessment by their own appointed medical practitioner at the RAF's expense.39
This "second opinion" procedure would apply to the actual material medical findings
of the assessment. For the RAF to succeed with this option, it must provide
dissenting medical opinion. Only in cases of dissenting medical opinion should
matters be referred to an appeal tribunal.40
36 Mngomezulu v RAF Unreported case no 4643/2010, Gauteng High Court. 37 Regulations (n 8) s 3(3)(d)(i). 38 Smit v RAF Unreported case no 47697/2009, Gauteng High Court. 39 Regulations (n 8) s 3(3)(d)(ii). 40 Ahmed 2011 Risk Alert Bulletin 6-7.
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4.1 Appeal Tribunal
The prescribed appeal tribunals consist of three independent medical practitioners
with expertise in the appropriate areas of medicine appointed by the Registrar,41 who
shall designate one of them as the presiding officer of the appeal tribunal.42 The
Registrar may also appoint an additional independent health practitioner with
expertise to assist the tribunal in an advisory capacity.43 At present only medical
practitioners who have attended the training by the authors of the AMA Guides and
who have passed the exam of the ABIME (American Board of Independent Medical
Examiners) are eligible for selection44.
It appears that the RAF provides a list of doctors who have passed the ABIME exam
to the HPCSA (the Health Professions Council of South Africa) for use in appointing
members of appeal tribunals. The appointment of tribunal members may therefore
lack independence and credibility. Lists published independently by ABIME, which
are available, should actually be used by the HPCSA.
The Amendment Act and the Regulations are in force in South Africa in relation to all
injuries sustained since 1 August 2008, yet the first tribunal sat in 2011, resulting in
major delays in dealing with claims rejected by the RAF.45
5 Recommendations
In amongst the doom and gloom there is a beacon of light. This is to be found on
page 331 of the AMA Guides in Table 13-8, in the method prescribed in its third row
"Description".46 This method, which achieves the status of a true disability
assessment, accords with the provisions of the Act, serves social justice and accords
with medical judgment and common sense. Whereas the AMA Guides prescribes
41 The Registrar of the Health Professions Council of South Africa established in terms of s 2 of the
Health Professions Act 56 of 1974. 42 Regulations (n 8) s 8(b). 43 Regulations (n 8) s 8(c). 44 The author(s) of the AMA Guides come to SA twice a year to give training on the Guides. South
African doctors who want to complete RAF 4 must do the training. Each individual can decide to write the exam in order to become a CIME. They can write the exams in SA or in the USA.
45 Regulation (n 8) s11 sets out the powers of the appeal tribunal. 46 Rondinelli et al Guides to the Evaluation of Permanent Impairment 331.
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this method in the evaluation of impairment related to alteration in mental status,
cognition and higher integrative function flowing from brain injuries, it is our
submission that this method is equally applicable to other forms of impairment,
whether of a physical, pain-related or psychological nature. For these reasons we
recommend that the method prescribed in the third row "Description" of Table 13-8 in
the AMA Guides should be used mindfully in applying the narrative test, irrespective
of the nature of the injury or impairment.
According to this "Description" in the Guides, classes and percentages of WPI are
defined as follows : - (our own emphasis)
Class 0 – Normal – 0 percent - defined as "Normal";
Class 1 - Mild abnormalities – 1 percent to 10 percent - defined as "Alteration in
MSCHIF but patient is able to assume all usual roles and perform ADLs";
Class 2 - Moderate abnormalities – 11 percent to 20 percent - defined as "Alteration
in MSCHIF that interferes with ability to assume some normal roles or perform
ADLs";
Class 3 - Severe abnormalities – 21 percent to 35 percent - defined as "Alteration in
MSCHIF that significantly interferes with ability to assume normal roles or perform
ADLs"; and
Class 4 - Most profound abnormalities – 36 percent to 50 percent - defined as
"Alteration in MSCHIF that prohibits performance of normal roles or performance of
ADLs".
The relevance of this method is that it relates the degree of the problem to the
performance of "ADLs" as well as to "normal roles" (life roles such as a mother, a
husband, an accountant, a professor, a gardener, a stamp collector, an athlete, a
pianist, a dancer, a manual labourer etc.).
In the application of this system the classification of an injured person as Class 0,
Class 1 or Class 4 is fairly simple and self-evident, as long as sufficient detail has
been canvassed in relation to the person's previous circumstances, ADLs and roles,
as well as the extent to which they have changed as a result of the injuries.
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Class 2 and Class 3 require more thought. The useful and essential discriminator
prescribed by the AMA Guides in determining whether an individual should be
classified as Class 2 or Class 3 is the determination of if the interference with the
ability to assume normal roles or perform ADLs is to be regarded as "some" or
"significant". In our submission an interference should be regarded as "some" when it
is clearly present and determinable but it does not result in particular distress or
suffering or does not really matter to the injured person. In contrast an interference
should be regarded as "significant" when it does result in ongoing distress or
suffering or does really matter to the injured person. Mindful application in this
manner meets the essential requirement of the assessment of "pain, suffering and
losses of amenities and enjoyment of life". It is furthermore considered that it is
within the capacity of any sensible medical practitioner to make this determination,
as long as sufficient detail has been canvassed.
It is understandable that there should be prescribed procedures to facilitate a fair
process for everyone. Much has been done in the past to streamline the process and
that is appreciated, yet the feeling arises that with a few more changes a lot can be
done to make the process more effective. Firstly, the Act and the Regulations in
terms thereof should address the same issues. As pointed out above, the Act refers
to the "circumstances" of the injured party but the Regulations do not mention them
specifically. The prescribed AMA Guides is a useful instrument, but for many
reasons it cannot be applied to South African needs without additional measures. In
particular the focus on impairment rather than disability needs rethinking.
Training in the use of the AMA Guides is currently given by one of the authors of the
Guides under the auspices of the RAF, which cannot be seen as independent. The
narrative test is not being addressed in the existing training. In the South African
context the narrative test seems to be extremely relevant, but proper understanding
thereof is crucial to its correct and just implementation. It is proposed that additional
training in the interpretation of serious injuries in the South African context should be
provided by South African experts under the auspices of an independent body.
The RAF 4 form should be adapted to be more meaningful. The order of points 4.1 to
4.9 of the form should be brought in line with common sense and the scientific
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methods used in medical diagnosis. More importantly, points should be added calling
for descriptions of the injuries, any complications of the injuries, the loss of ADLs and
the loss of life roles, as well as the impairment percentage. Words also need to be
defined and used accurately.
The evaluation of RAF 4 reports by administrators of the RAF needs attention as
well. Members of staff should be trained in the meaning and application of the
narrative test. They should also be made aware that the narrative test is not to be
applied only in rare instances where the whole person impairment raring falls below
30 percent. They should know that the doctor completing the report has a choice
between using the whole person impairment rating or following the narrative test.
Claims should not be declined off-hand as the process thereafter is cumbersome
and costly. If administrators have sufficient knowledge and use experts to assist
them, there should be less need for cumbersome and costly reviews by appeal
tribunals.
In using experts as tribunal members the HPCSA should consult the independent list
of CIMEs from ABIME rather than lists that may have been edited by the RAF. As
the RAF is a party to a dispute before an appeal tribunal it cannot rightfully be
involved in driving the process. More importantly, over and above any training in the
use of the AMA Guides, tribunal members should have understanding of the
provisions of the Act and of the narrative test, as well as experience of disability
assessment in South Africa.
6 Conclusion
In Road Accident Fund and Another v Mdeyide47 the RAF is described as "a hugely
important public body which renders an indispensible service to vulnerable members
of society".48 The majority judgment reflected an acknowledgement of the crucial
importance of a "properly administered" Fund to the upholding of "the constitutional
values of human dignity, the achievement of equality and the advancement of human
47 Road Accident Fund v Mdeyide 2011 1 BCLR 1 (CC). 48 Road Accident Fund v Mdeyide 2011 1 BCLR 1 (CC) para 78.
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rights and freedoms".49 Bearing this in mind the seriousness of an injury should be
assessed as determined by legislation; the circumstances of the victim should be
taken into account; and the true impact of the injuries on the victim's life should be
mindfully and appropriately assessed.
The RAF should give just compensation to persons who have suffered due to an
accident. The process of claiming general damages is currently experienced as
cumbersome, confusing, complicated and socially unjust. This should not be the
case. A few sensible alterations to the Regulations and the RAF 4 form, as well as
more appropriate training in the assessment of serious injuries in accordance with
the Act, should go a long way in streamlining the unwieldy procedures.
The narrative test is extremely important as it is wider than the impairment of the
whole person test, but education is needed on the proper application of the test and
the formulation of relevant motivations. The evaluation of seriousness relates to
more than the medical evaluation of impairment, and other crucial factors need to be
taken into consideration.
49 Road Accident Fund v Mdeyide 2011 1 BCLR 1 (CC) para 80.
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Bibliography
Ahmed 2011 Risk Alert Bulletin
Ahmed R "RAF Case Law" 2011 Risk Alert Bulletin (5) 6
Rondinelli et al Guides to the Evaluation of Permanent Impairment
Rondinelli RD et al Guides to the Evaluation of Permanent Impairment 6th ed
(American Medical Association Chicago 2008) (AMA Guides)
Bertelsmann 2011 Risk Alert Bulletin
Bertelsmann E "Useful Tips for MVA Practitioners" 2011 Risk Alert Bulletin (4)
6
Venter Pretoria News
Venter Z ''Greedy' lawyers punished: Six struck off the roll, seven suspended;
must repay millions to RAF' Pretoria News 30 September 2011
Register of case law
Daniels v RAF Unreported case no 8853/2010, Western Cape High Court
Engelbrecht v Road Accident Fund 2007 6 SA 96 (CC)
Law Society of South Africa v Minister of Transport 2010 11 BCLR 1140 (GNP)
Law Society of South Africa v Minister of Transport 2011 1 SA 400 (CC)
Mngomezulu v RAF Unreported case no 4643/2010, Gauteng High Court
Road Accident Fund v Mdeyide 2011 1 BCLR 1 (CC)
Smit v RAF Unreported case no 47697/2009, Gauteng High Court
Register of legislation
Health Professions Act 56 of 1974
Motor Vehicle Insurance Act 29 of 1942
Road Accident Fund Act 56 of 1996
Road Accident Fund Act 56 of 1996: Road Accident Fund Regulations, 2008.
Government Gazette Number 31249, Notice Number 770 of 21 July 2008
M SLABBERT AND HJ EDELING PER / PELJ 2012(15)2
290 / 569
Road Accident Amendment Act 19 of 2005
Internet
http://www.raf.co.za [date of use 19 Dec 2011]
http://www.abime.org [date of use 19 Dec 2011]
List of abbreviations
ABIME American Board of Independent Medical Examiners
ADL Activities of daily living
AMA American Medical Association
CIME Certified Independent Medical Examiner
GAF Global assessment of function
HPCSA Health Professions Council of South Africa
IQ Intelligent Quoficient
MMI Maximal medical improvement
MSCHIF Mental status, cognition, and highest integrative function
RAF Road Accident Fund
WPI Whole person impairment
SUMMARY M SLABBERT AND HJ EDELING PER / PELJ 2012(15)2
THE ROAD ACCIDENT FUND AND SERIOUS INJURIES: THE NARRATIVE TEST
M Slabbert*
H J Edeling* SUMMARY The Road Accident Fund Amendment Act 19 of 2005 came into effect on 1 August
2008. This Act limits the Road Accident Fund’s liability for compensation in respect
of claims for non-pecuniary loss to instances where a “serious injury” has been
sustained. A medical practitioner has to determine whether or not the claimant has
suffered a serious injury by undertaking an assessment prescribed in the
Regulations to the Act. The practitioner has to complete a RAF 4 report. In doing so
the practitioner must assess the injury in terms of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (6th ed). If the injury
is considered to have resulted in less than 30 per cent of the whole person
impairment the medical practitioner should apply the narrative test. The article
focuses on the narrative test but also discusses reasons why the regulations do not
fulfil the requirements of the Act; reasons why the Guides is not adequate to the
task; the impact of the circumstances of an injured person on disability; problems
with the existing wording of the narrative test; shortcomings on the RAf 4 form; the
administrative process as well as the appeal tribunals.
KEYWORDS: Road Accident Fund, serious injuries, non-pecuniary loss, permanent
impairment
* Magda Slabbert. BA (Hons) HED B PROC LLB LLD (UFS). Professor Department of
Jurisprudence, University of South Africa, [email protected]. * Herman J Edeling. MBBCh (Wits) FCS (SA) (Neuro). Fellow of the College of Surgery with
Neurosurgery Certified Independent Medical Examiner, [email protected].